DUTY OF CONFIDENTIALITY - An integral
purpose of the rule of confidentiality is to encourage
clients to fully and freely disclose to their attorneys
all facts pertinent to their cause with absolute assurance
that such information will not be used to their disadvantage.
T.C. Theatre Corp.v. Warner Bros. Pictures, 113 F.Supp.
265, 269 (S.D.N.Y.'53); See also Maritrans GP, Inc.
v. Pepper, Hamilton, & Scheetz, 529 Pa. 241, 254
(1992).
There is support in the law for the contention that
where prior and current representations involve the
same transaction, access to confidential information
by the attorney in the course of the first representation
is presumed. See Flatt v. Superior Court, 9 Cal.4th
275, 283 (1994); David Welch Co. v. Erskine &
Tulley, 203 Cal.App.3d 884, 891 (1988) ("the
actual use or misuse of confidential information is
not determinative; it is the possibility of breach
which controls") (emphasis added). Due to the
grave risk of disclosure, some courts conclude that
attorneys simply may not undertake to represent a
client whose interests are adverse to those of a former
client in matters substantially related to the representation
of the former client. T.C. Theatre Corp., at 269.
When an attorney engages in a conflict of interest
on the same matter, he or she is in a position to
act on the confidential information learned from the
relationship with the first client, whether or not
that information is actually disclosed or acted upon
in advising the new client. Maritrans GP, at 254;
David Welch Co., 203 Cal.App.3d at 891. Because this
position creates such a grave risk of breach of confidence,
it is anomalous to find that the duty of confidentiality
does not have as its direct correlation a duty of
loyalty.
